Aug. 26, 2009

Written by

John Lee

Post-Crescent staff writer

MANITOWOC — Attorneys who represented Brendan Dassey failed to effectively challenge statements he made to police that implicated him and his uncle in the Oct. 31, 2005, slaying of Teresa Halbach, his new attorneys say.

Previous defense attorneys in the case failed to call witnesses who could have testified to "psychologically coercive techniques" used by police to get statements from Dassey, and one attorney had a "near exclusive focus on brokering a plea deal (and) failed to develop a defense that would expose the unreliability to Dassey's statements during the critical early stages of representation," the new attorneys say.

The claims are included in a 19-page post-conviction motion asking for a new trial for the teen, who is serving a life prison sentence after he and his uncle, Steven Avery, were convicted of first-degree intentional homicide in Halbach's death.

She was last seen at the Avery Auto Salvage Yard west of Mishicot, and near Avery's home adjacent to the junk yard, taking a photo of a van Avery was selling for Dassey's mother.

The motion was filed Tuesday by Milwaukee attorney Robert J. Dvorak and Northwestern University law professor Steven A. Drizin and the school's Center on Wrongful Convictions.

A post-conviction motion asking for a new trial for Avery is pending in another Manitowoc County court branch.

Manitowoc County Judge Jerome Fox, who presided over Dassey's 2007 trial, said he was not sure when he would schedule a hearing on Tuesday's motion.

He said he would have a scheduling conference "very soon" with Dassey's attorneys and Calumet County Dist. Atty. Ken Kratz, who served as special prosecutor in the case, but said his calendar is busy the rest of the year.

The filing came with a foot-high stack of documents and also was put on sets of five computer disks.

Besides the 19-page motion, there are 184 pages of accompanying memoranda, about twice that many pages of exhibits, and video and transcripts of several statements Dassey gave to police.

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Fox and Kratz said Tuesday they had just received the filings and could not comment on the motion.

The description of Dassey as a 16-year-old special education student who was coerced by police has been disputed by police and prosecutors before and during the teen's trial, with police saying he was arrested in a driver's education class at Mishicot High School.

Kachinsky represented the youth until after his preliminary hearing, but was removed from the case after he allowed police to question Dassey on May 13, 2006, without an attorney present. Kachinsky was on National Guard duty at the time.

He was replaced by Fremgen and Edelstein.

Dassey was taken into custody and questioned by police on Feb. 27, 2006 — four months after Halbach's death, and nearly four months after Avery was charged.

Kachinsky had filed motions to suppress Dassey's statements of Feb. 27 and March 1, 2006, which were made without an attorney or his mother present, but Fox denied that motion.

Fremgen also failed to identify "glaring inconsistencies" between Dassey's earlier statements and his May 13 statement, the motion claims.

Fremgen also attempted to have the statements suppressed, and the planned use of an expert on interrogations and false confessions, Dr. Robert Gordon, was allowed to testify only on "suggestibility" in interrogations.

That decision came less than two weeks before Dassey's trial, and Fremgen and Edelstein failed to use another expert on youth confessions that was contacted by Avery's attorneys.

During trial, the motion says, "Fremgen and Edelstein did not systematically deconstruct Dassey's confession in a way that would have showed the jury it had been thoroughly contaminated by outside information."

Also, the motion says, they failed to show parts of the confession that would have shown "many instances" where police fed Dassey facts about Halbach's death "and then coached him to repeat them."

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Dassey later told his mother, in a taped conversation, that investigators "got into my head" and that his confession was "not really true."

"The few piecemeal efforts that Fremgen and Edelstein did make to establish contamination, however, barely scratch the surface of the type of methodical argument needed to counter the state's claim that Dassey's confession was reliable," the motion says.

"By attacking only a few facts as contamination, Fremgen and Edelstein actually suggested to the jury that Dassey's knowledge of all the other facts in his confession constituted unassailable evidence of his guilt."

Kachinsky said Tuesday that police used a "classic" questioning method known as the Reed interrogation technique during the 3½-hour interview of Dassey. "I don't know if I'd call it coercive," he said. "It's a strategy police officers use.

"I argued that some of the attempts to appeal to Dassey's sense of morality could have been in some sense coercive but there wasn't anything in that that was in the nature of an unlawful promise. Judge Fox found what was used didn't cross the line even though Dassey had some mental shortcomings," Kachinsky said.

Kachinsky said "Fremgen and I did the best we could under the circumstances, but that's ultimately up to the court to decide."

Attempts to reach Fremgen for comment were unsuccessful.

Edelstein declined to comment Tuesday. "I haven't seen (court filings) so I really can't comment at this point," he said.